Comprehensive Regulatory Change to Employment-Based Immigration in 2020

Klasko Immigration Law Partners, LLP
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In the employment-based immigration context, the Trump Administration’s vision of compressive immigration reform has become synonymous with “Buy American and Hire American,” a policy hallmarked by restricting access to the “legal” immigration system. So far, the Trump Administration has largely relied upon U.S. Citizenship and Immigration Services (USCIS), the agency charged with rendering decisions on employment-based immigration petitions, to make its vision a reality. The latest data reflects the Trump Administration as having been highly effective in carrying out its policies, with Request for Evidence (RFE) rates and denials being at all-time highs. Yet, USCIS’s unprecedented level of scrutiny has spurred an equally unprecedented amount of administrative and judicial litigation. In this regard, the current rules on the books that bind USCIS have proven to be a somewhat helpful check upon USCIS’s increasingly erroneous interpretations of law. With this in mind, the Trump Administration has now set its targets on changing the rules of the game themselves.

In its recently published Fall 2019 regulatory agenda, the Trump Administration is slated to solicit public commentary on numerous rules, several of which affecting the most highly utilized employment-based nonimmigrant visa categories. Highlights of these changes are summarized as follows:

Changes to the H Nonimmigrant Visa Program

Limitation of Third-Party Worksite and Start-Up H-1B Petitions
Over the past several years, USCIS has clamped down on the H-1B nonimmigrant visa program. One method USCIS employed is honing-in on the regulatory requirement that an employee share an “employer-employee relationship” with her or his employer. Through a series of policy memoranda, USCIS has made the term “employer-employee” relationship synonymous with the concept of “control.” Increasingly, USCIS is requiring H-1B employers to show that they are controlling the minutia of an employee’s work, an interpretation which has been particularly impactful to employers who place their H-1B employees at third-party worksites, such as physical therapists visiting nursing homes or IT consultants placed at a client to implement a software project. Employers in these situations do not necessarily exercise daily on-site management. Start-up companies founded by foreign nationals, whose board of directors do not necessarily oversee day-to-day operations, have also faced challenges in this new environment. The newly proposed regulation will likely solidify USCIS’s current interpretations and potentially adopt a more restrictive definition of the term of “employer-employee relationship,” making it more challenging to acquire an H-1B approval for those employers.

Elimination of H-4 Spouse Work Permits
H-4 nonimmigrant status is available to the immediate family members of H-1B nonimmigrants. While H-4 holders are generally not eligible for an Employment Authorization Document (EAD), there is a limited exception when a principal H-1B holder: (a) has an approved I-140 Immigrant Petition for Alien Worker, but cannot apply for Lawful Permanent Residency due to the per country visa limitations or (b) has been granted an H-1B extension beyond the six-year maximum because of an ongoing greed card process. Under the new rule, USCIS would abolish the H-4 work permit program. Accordingly, H-4 spouses (who sometimes wait years, and in some instances, decades, to acquire permanent residency) will be forced to remain in the U.S. without the ability to advance their careers or contribute to family earnings (and U.S. taxes).

Changes to the L Nonimmigrant Program

Comprehensive Reform to L-1 Program
L-1 nonimmigrant status is available to employees of an international company with offices in the U.S. and abroad. Using L-1, a foreign company may transfer its workers to the U.S., provided that the foreign worker (a) have been employed for the foreign company for at least one year within the last three years in a managerial or executive capacity (i.e. L-1A visa) or (b) possess “specialized knowledge” about the U.S. company (i.e. L-1B visa). Similar to the H-1B third-party worksite issue discussed earlier, the new regulation would redefine the “employer-employee relationship” term found within the L-1 regulations, affecting L-1 employees placed at third-party worksites as well as L-1 start-ups. Furthermore, the new regulation would impose a minimum wage requirement on the L-1 program, a measure for which no statutory authority exists. Finally, the new regulation would narrow the definition of “specialized knowledge,” a measure which would likely make it very difficult to successfully petition for an L-1B visa.

Changes to F Nonimmigrant Program

Comprehensive Reform of Practical Training Program
Practical Training refers to a temporary employment program providing F-1 students hands-on experience in their respective academic fields. Practical Training comes in three varieties: Curricular Practical Training (CPT), a semester-long training program for F-1 students enrolled in college; Optional Practical Training (OPT), a year-long training program for freshly-graduated F-1 students; and STEM OPT, a twenty-four month extension of OPT work authorization for F-1 students possessing a degree in science, technology, engineering, and mathematics. The current regulatory agenda does not indicate how Practical Training will be amended. However, in a similar rule proposed in the Fall 2017 Regulatory Agenda, the Bureau of Immigration and Customs Enforcement (ICE) described its proposed rule as a “comprehensive reform.”

Proposed Regulation Would Limit “Duration of Status” Admission of F, M, J, and I Nonimmigrants by Providing a Maximum Period of Stay
The Immigration and Nationality Act (INA) establishes the F nonimmigrant classification for individuals who wish to come to the United States to enroll in a full course of study at an academic or language training school, M for individuals enrolled in a nonacademic or vocational program, J for individuals engaging in exchange visitor programs, and I for representatives of foreign press, radio, film, or other information media. Under current rules, F, M, J, and I nonimmigrants are generally admitted into the U.S. for “Duration of Status” or D/S. A person granted D/S has school transfers and extensions of their studies handled by their university, so long as they comply with the terms and conditions of their status. Under the new rule, DHS would eliminate D/S and provide a specific date of authorized stay.  This would involve USCIS in adjudication of student school transfers and program extensions for the first time since the 1980s.

Background Checks for Designated School Officials and Exchange Visitor Program Administrators
The F and M student visa programs are overseen by Designated School Officials (DSOs). Similarly, Exchange Visitor Program (EVP) administrators oversee J exchange visitor programs. DSOs and EVP administrators are responsible for updating and maintaining student records in the Student and Exchange Information System (SEVIS), a web-based system that the U.S. Department of Homeland Security. Under the proposed rule, DSOs and EVPs would be subject to further “vetting” as a condition to employment. 

Other Business Immigration Changes

Elimination of B-1/2 “Birth Tourism”
“Birth tourism” is the practice of traveling to the U.S. on a B-1/2 nonimmigrant visa for the purpose of giving birth, something that is often sought by women whose home countries experience high rates of infant and/or maternal mortality stemming from childbirth. Reception of pregnancy-related medical treatment, including childbirth, has long been recognized as a legitimate B-1/2 activity. The new rule would likely ban pregnant women from entering the U.S. to give birth.

Revising Standards by Which the U.S. Department of State Recommends “No Objection” Waivers
Certain visitors on J-1 nonimmigrant visas are required to return to their home countries for a period of two-years upon completing their exchange programs (i.e. the “two-year home” rule). Individuals subject to the two-year home rule are often eligible to apply for a “no-objection” waiver. A no-objection waiver indicates that the individual’s home country does not require the applicant to return. In general, when an individual’s home country expresses “no objection” to the individual’s continuing presence in the U.S., the U.S. Department of State (DOS) will acquiesce and make a positive recommendation for a waiver. The newly proposed rule would likely change the tradition of DOS acquiescence, requiring consular officials to consider additional factors before recommending a waiver for approval. In turn, the rule has the potential of impacting the United States’ ability to retain highly skilled U.S.-trained professionals.

Implementation of Visa Security Program Fee
ICE, through its Homeland Security Investigations team, administers the Visa Security Program, a program in which special agents are assigned to diplomatic posts worldwide to conduct a variety of law enforcement activities. The Visa Security Program is funded through a Congressionally appropriated funding stream. The new rule would change the Visa Security Program to a user-fee funded model, resulting in increased fees for immigrant and non-immigrant visa applicants.

Elimination of the H-2B Program’s Print Newspaper Advertisement Requirement
One exception to the pattern of proposed rules requiring employers to increase efforts to “Buy American, Hire American” is a proposed Department of Labor rule to make the H-2B visa program less expensive for employers. The H-2B program permits U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs, such as seasonal help at hotels and resorts. Before requesting USCIS to authorize H-2B employment, the prospective employer must test the domestic labor market through a variety of measures, one of which includes posting a print newspaper advertisement. Such advertising is normally quite expensive, even though relatively few job seekers use print newspapers to seek employment in today’s internet-based economy. Under the new rule, H-2B employers would no longer have to recruit domestic laborers via print newspaper advertisement.

In short, the Trump Administration has pivoted to rulemaking as the next method for rolling-out its overarching Buy American and Hire American policy. Most of these rules are currently in the notice stage, and thus, likely to take a more definite shape next year. What is clear is that most of these rules will serve to restrict the availability of some of the most highly depended-upon employment-based visa programs.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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